A discussion about issues, appellate decisions, and other news of interest to Kansas defenders. This site does NOT necessarily reflect the opinion or position of the Appellate Defender Office or of the Kansas Board of Indigent Defense Services. Nor does this in any way constitute legal advice or is it even warranted to be remotely accurate! It is intended to be a resource for Kansas defenders and others interested in the criminal justice system in Kansas.

Thursday, December 01, 2011

Failure to prove facts about priors

Washburn student intern Dustin L. Kirk and I won in State v. Hunt, No. 104,529 (Kan. App. Oct. 21, 2011)(unpublished), obtaining reversal of a Sedgwick County criminal possession of a firearm conviction. This case was litigated by bench trial mainly to preserve a suppression issue for appeal. But the criminal possession of a firearm charge required that the state prove that Mr. Hunt had been convicted "within the preceding 10 years." The COA held that the state failed to provide any evidence of that fact:

But the parties' stipulation that the gun was working certainly did not prove when the prior felony conviction had occurred. And the evidence had not done so, either. The evidence on this point was one officer's testimony that “[i]t turned out Mr. Hunt actually had a felony conviction for prior marijuana possession, which would make it a felon in possession of a firearm [offense], and that is what he was booked for.” The officer later confirmed that Hunt had “been previously convicted of a felony.” No one asked when that conviction had occurred.

. . . .

We do recognize, although the State does not make this specific argument, that Hunt was 22 years and 9 months old at the time of this arrest. Thus, for his past conviction to have been more than 10 years old at that time, he would need to have received the equivalent juvenile adjudication sometime before he was 12 years and 9 months old. Is that likely? No. But can we say beyond a reasonable doubt—based solely on the evidence presented at trial—that he didn't receive a juvenile adjudication for the equivalent of felony marijuana possession before he was 12 years and 9 months old? No. Even 12–year–olds can be adjudicated for marijuana possession.

. . . .

We can understand how the State's lapse occurred in this case. Presumably, both parties initially thought all of the elements needed to convict had been proved. But a trial was held, and the evidence wasn't sufficient to prove the defendant guilty beyond a reasonable doubt. The State bears that burden.

This case is a nice reminder that a bench trial, and even a bench trial on stipulated facts, is still a trial. The Due Process Clause still requires proof beyond a reasonable doubt with evidence on the record. It also may be a nice case why the state should support amending the Kansas statutes to reflect that defendants should be able to enter conditional guilty pleas, reserving specific issues for appeal.

[Update: the state did not file a PR and the mandate issued on November 29, 2011.]